Member Article

The liability of online platforms relating to infringing IP material that appears on their platforms is an interesting topic. Who is liable for infringing material that appears on online platforms, the person who posts the material or the online platform?

This was recently considered by the Court of Justice of the European Union (“CJEU”) in two separate cases.

Some preliminary points

Copyright news in South Africa these days is scant. There tend to be few court judgments and as for legislation, well there’s this interminable stasis. This, of course, relates to the proposed amendments that introduce fair use exceptions to replace the existing fair dealing exceptions that have always formed part of South African law.

So, a judgment that pertains to an issue that almost everyone can relate to, given that we all spend a significant amount of time visiting online platforms, is welcome.

The parties to the CJEU cases

The cases involved YouTube and Cyando, which is the company behind the Uploaded platform. These cases arose following complaints of unauthorised music uploads on YouTube and unauthorised textbook uploads (produced by Elsevier) on Uploaded.

Online platforms

The court acknowledged the important role that online platforms play in modern society. The court also recognised that the material is uploaded by users acting independently, who decide whether or not the content should be available to others. It is therefore the user who effectively communicates the material to third parties.

Liability for online platforms

The court held that online platforms are generally not responsible for infringing content that users have uploaded. In the words of the court, the platform operators have not themselves made a “communication to the public” of the copyright-protected material. The mere fact that the operator may be aware that protected content is available on its platform is not enough to hold it liable.

Yet, there may be situations where the platform operator is liable for infringing material that appears on its platform. In deciding this, the following factors need to be considered:

• Does the platform operator implement the sort of technological protection measures that could be reasonably expected of a diligent operator?
• Does the operator, through its business model, encourage the illegal sharing of copyright-protected material?
• Does the operator provide tools that enable or facilitate illegal sharing?
• Does the operator actually participate in the selection of copyright-protected material for illegal communication to the public?
  
  

Therefore, the protection that the platform operator enjoys may fall away when it does more than simply make the platform available. For example, when it adopts a financial model that encourages the illegal communication of protected material, provides the tools that facilitate illegal sharing or when it participates in the selection of the protected material that is communicated the public.  

The protection that the platform operator enjoys may also fall away by default. For example, when the platform operator fails to expeditiously delete the infringing material, or where the platform operator fails to install appropriate technological measures, the sort of copyright protection measures that could be expected from a reasonably diligent platform operator.

Specificity

The court made the point that the platform operator will not incur liability where it has no more than a general sense that infringements are taking place. Nor will it incur liability where there’s nothing more specific than the claim that the platform operator aims to make a profit.

Safe harbour provisions

The court also dealt with the safe harbour exemption that is created by the E-Commerce Directive. This Directive provides that a platform operator is exempt from liability if it has no actual knowledge of illegal conduct taking place on its platform. The CJEU made the point that general or non-specific knowledge about infringing material on the platform does not invalidate this defence.

Wrapping up

CJEU judgments tend to be persuasive in South Africa. This judgment, which deals with a current and very significant issue, is therefore, likely to be relevant to South Africa and may be followed by our courts.

Delene Bertasso
IP Trade Mark Attorney Senior  Associate
[email protected]
+27 83 399 6172